Appeal court judges say scientific controversies must be settled by science not lawBMJ 2010; 340 doi: http://dx.doi.org/10.1136/bmj.c1895 (Published 01 April 2010) Cite this as: BMJ 2010;340:c1895
The science writer Simon Singh has won a landmark victory at the Court of Appeal in London giving stronger free speech protection to writers facing libel threats for raising issues of scientific controversy.
Three of the most senior judges in England and Wales have allowed his appeal against a high court preliminary ruling that when he accused the British Chiropractic Association (BCA) of “happily promoting bogus treatments” he could not claim the defence of “fair comment” (BMJ 2009;338:b2127, doi:10.1136/bmj.b2127).
Lord Judge, the lord chief justice, said he and his fellow judges adopted a statement by Judge Easterbrook, now chief judge of the US Seventh Circuit Court of Appeals: “[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination,’ silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests.
“Scientific controversies must be settled by the methods of science rather than by the methods of litigation . . . More papers, more discussion, better data, and more satisfactory models—not larger awards of damages—mark the path towards superior understanding of the world around us.”
Dr Singh was sued by the BCA over a comment piece in the Guardian newspaper on 19 April 2008, which argued that the association’s claims that chiropractic could treat childhood conditions such as colic, ear infections and feeding problems were made without “a jot of evidence.”
Lord Judge, master of the rolls Lord Neuberger, and Lord Justice Sedley noted the way the BCA had started libel proceedings against Dr Singh personally without taking up the Guardian’s offer of a right of reply and a chance to publish the evidence upon which the association relied.
They said the litigation would have shut down debate on the issues raised, “which might otherwise have assisted potential patients to make informed choices.” This would be “a surprising consequence of laws designed to protect reputation.”
The judges ruled that high court judge Mr Justice Eady had “erred” when he ruled that the meaning of Dr Singh’s article was that the BCA “knowingly” promoted bogus treatments, and that his words were a statement of fact—requiring him to prove they were true to win the case—rather than comment.
The natural meaning of the words, the appeal court judges said, was that the BCA was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence.
Richard Brown, the BCA’s president, said the association had followed legal advice that to get a retraction it needed to issue a writ and to sue the writer rather than the newspaper. “We are of course disappointed to lose the appeal, but this is not the end of the road and we are considering whether to seek permission to appeal to the Supreme Court and subsequently proceed to trial.
“The BCA brought this claim only to uphold its good name and protect its reputation, honesty and integrity.”
Dr Singh said it had taken £200 000 in legal costs so far just to decide the meaning of the words and consumed two years of his life. “It shouldn’t be that expensive, arduous and painful.”
The BCA is expected to be ordered to pay his costs but winning litigants rarely get all their costs back and he is likely to be tens of thousands of pounds out of pocket.
He urged MPs of all parties to keep up the pressure for libel reform—backed by a campaign organised by Sense about Science, Index on Censorship and English PEN—in the wake of the judgment.
An attempt by justice secretary Jack Straw to slash lawyers’ success fees in libel cases from 100% to 10% on top of their normal fees was defeated in the House of Commons on 31 March. The Law Society criticised the draft order as “rushed and inadequate.”
But MPs, including the Liberal Democrats’ Evan Harris and the Conservatives’ David Davis, are pressing for their parties’ manifestoes for the forthcoming general election to include libel reform.
Cite this as: BMJ 2010;340:c1895